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With This Ring...

With This Ring...

Jenny Johnston
On marriage breakdown, spouses typically retain property owned solely by him or her prior to the wedding. In cases where the couple never married, property negotiations may relate to jointly owned assets, or contributions made by one spouse to an asset owned by the other. Counsel faced with these disputes, should not ignore one emotional sticking point: the engagement ring. Potentially valuable to the heart and pocketbook, engagement rings in case law straddle notions of unconditional gifts, conditional gifts, and contracts that must be executed or undone.
Although substantial solitaires can be objectively valuable enough to trigger argument between separating couples, it is also important to consider cases in which the engagement ring in question is a family heirloom. Even when these family antiques are melted down or modified to please the modern bride, they can hold an added degree of significance that makes passionately arguing for their return that much easier for clients to imagine and undertake.

Approaches to dealing with Engagement Rings

Anna Wong, in a 2012 article for The Lawyers Weekly,[1] described three approaches to dealing with engagement rings when the parties do not ultimately marry: as a conditional gift, an unconditional gift, or a symbol of the contractual agreement to marry. She argues that these rings should be considered unconditional gifts, and that the law should be consistent on this point. Although this paper supports her call for consistency, it draws a different conclusion. 

The Common Law

Characterizing an engagement ring as an unconditional gift allowed Justice Sebastian Winny D.J. in Matromatteo to find that "the gift of an engagement ring... is just that - a gift. The notion that the ring must be returned if the marriage does not occur appears... inconsistent both with the nature of a gift and with the modern law relating to marriage."[2] Regardless of who ends the engagement or why, the ring stays with the recipient.
Characterizing an engagement ring as evidence of a contract of intended marriage allowed Justice I.H. Pitfield in Zimmerman to find that the ring should be returned to the original purchaser, in order to restore the parties "to their pre-contract positions"[3] where the marriage never actually takes place. The contract is either fulfilled, with marriage, or completely undone, with the ring returned to the original purchaser every time.
In Ontario the common law has historically treated engagement rings differently depending on which one of the parties ended the engagement. This can be difficult to work out. In McArthur v.Zaduk [4] for example, Mr. Zaduk said the words to end things, but Ms. McArthur had maintained other romantic partners throughout the engagement. Wherever fault matters, he-said/she-said arguments can play a significant role in these cases.

The Marriage Act

Luckily, the current legislation means that fault is no longer the critical issue. Section 33 of Ontario's Marriage Act[5] provides:
Where one person makes a gift to another in contemplation of or conditional upon their marriage to each other and the marriage fails to take place or is abandoned, the question of whether or not the failure or abandonment was caused by or was the fault of the donor shall not be considered in determining the right of the donor to recover the gift.Justice Mackinnon's recent decision in Newell v.Allen helped to clarify the state of the common law in Ontario and the impact of section 33: "the common law provided that a gift given in contemplation of marriage was recoverable on timely demand if the donor was not responsible for ending the engagement. The Marriage Act has removed consideration of fault." [6] Mr. Allen, the original purchaser, had made a request for the ring's return in his Answer, which was held to be a timely demand. Mackinnon J. ordered the ring returned.
The unconditional gift cases ignore the language of section 33 of the Marriage Act. Ontario's legislation allows for gifts in contemplation of marriage, or conditional upon its taking place. Treating all engagement rings as unconditional gifts would override this provision.
Mackinnon J. cites decisions from the 1910s and 1920s to point out that the common law too allows for engagement rings to be returned if "the lady... broke off the engagement."[7] TheMarriage Act simply takes the pressure off of the ladies, but not off of the couple as a whole. Unlike Justice Sebastian Winny D.J.'s finding in Matromatteo, requiring engagement rings to be returned is not inconsistent with the modern law relating to marriage, but spelled out in the legislation that allows for modern marriages. Clearly it sounds old-fashioned to some, but engagement rings should be returned if the parties never make it to the altar.
Engagement rings are not often an isolated issue between separating parties, but they can be a particularly sticky emotional one, particularly where the jewelry is a family heirloom. It is clear that a prompt request for the ring's return is essential, regardless of why the engagement ends, or who actually ends it.
Considering very long engagements, joint family ventures, how far one can stretch the term "abandoned" in section 33, or very short marriages are all outside the scope of this brief paper, but it should be acknowledged that there is likely room for argument around any of these scenarios. Eliminating the conditional component of these gifts may add certainty, but it is inconsistent with the legislation to do so.

- Jenny

Remember, everyone's situation is unique. The blogs posted on this site are informational. They are not intended to be taken as legal advice for your situation. It is always a good idea
to seek professional legal advice before making any decisions related to your particular case.

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